Governor Andrew Cuomo has been floating the idea of a special legislative session to address federal cuts to the state’s health care programs, as well as other concerns that have developed, since the state budget was agreed to in April.

In that budget, Cuomo pushed to include and won a provision granting him nearly unilateral power to adjust the state’s financial plan mid-year in the event of at least $800 million in federal cuts to the state. In April, the governor said the provision would ensure that “we do not overcommit ourselves financially” and indicated it allowed him to sign off on a budget that did not otherwise account for likely federal cuts. But, it appears as if Cuomo may call lawmakers back to Albany -- likely with agreement from the legislative majorities to an agenda -- regardless of whether the threshold has been met.

When the state Legislature finished its legislative year in June with a brief special session to pass mayoral control of schools as well as several smaller measures, such as $55 million in state aid for businesses and homeowners impacted by flooding around Lake Ontario, unknowns surrounding President Donald Trump’s promise to “repeal and replace Obamacare” loomed large.

As chatter of a special session to address two lapsed federally subsidized health care programs escalated this week, so did a feud between Cuomo’s administration and that of New York City Mayor Bill de Blasio over $380 million that was earmarked to reimburse New York City Health + Hospitals, the city’s public hospital network, for expenses incurred treating uninsured and indigent patients over the last two years.

In recent weeks, Cuomo has sounded the alarm over four essential funding streams to New York health care systems that are being threatened by Trump and a Republican-led Congress. While the federal Graham-Cassidy bill -- a replacement to the Affordable Care Act that would have cost New York $16.9 billion by 2025, according to projections -- was defeated, and parts of Trump’s sweeping tax plan that target blue states are on shaky ground, the federal government failed to renew the Disproportionate Share Hospitals funds, known as D.S.H., by October 1, creating a potential $2.6 billion shortfall that is expected to disproportionately hit New York City’s public hospital system over the next year and a half.

If they remain in effect, the cuts will place a $330,000 burden on Health + Hospitals for federal fiscal year 2018, but the city says the state is also unlawfully holding $380 million in federal funds owed to city hospitals for federal fiscal year 2017, which just ended, for services already provided.

This federal funding, which passes through the state, is allocated for municipal and state-run hospitals that treat high volumes of uninsured and indigent patients.

While it is unclear whether the cut would justify a budget adjustment by the executive branch given the April budget provision, Cuomo appears to be courting lawmakers to return for a special session that could address D.S.H. and other looming health care deficits.

Also lapsing earlier this month is the federal Child Health Insurance Plan (CHIP), which subsidizes New York’s Child Health Plus plan, putting New York in a $1.1 billion hole and potentially jeopardizing the health coverage of 330,000 lower-income New York children, according to Cuomo’s office, though it seems likely a federal deal over the children’s health program may soon be reached. Still, the state has been placed in a precarious position.

In a letter sent Wednesday to Eric Hargan, acting secretary of the U.S. Department of Health and Human Services, New York State Health Commissioner Howard Zucker warned that New York will not be able to continue the current Child Health Plus program if Congress fails to renew $1 billion in federal funding, and he said that Governor Andrew M. Cuomo will “have no choice but to call a special session of the Legislature.”

On Tuesday, Cuomo had dangled the special session idea before 13 upstate lawmakers, and in reality a much wider audience, suggesting in a letter that an extraordinary legislative session could also be used to amplify and speed up relief funding for Lake Ontario flood victims.

“I would support a special session of the legislature to return and appropriate an additional $35 million for this program to fund all eligible applicants in a time frame that recognizes the urgency of the situation,” Cuomo wrote. “There are other pending issues that could also be addressed at a special session, including the financial hardship the State will face from potential federal cutbacks.”

In addition to the 11 public hospitals in New York City’s Health + Hospitals system, the D.S.H. cuts directly impact the state-run SUNY Upstate Medical Center in Syracuse and SUNY Downstate hospitals in Brooklyn, Westchester County Medical Center, Nassau University Medical Center and Erie County Medical Center.

None of these facilities will receive payments until adjustments are made, according to Cuomo’s office.

The state has retained an outside consultant, KPMG, to figure out how to help health care facilities manage the cuts and Cuomo has repeatedly suggested that the Legislature may be forced to reconvene Congress signals that the money will not be restored by December 31. In a press conference on the topic last Tuesday, the governor suggested that local governments step up to offset some of the cuts.

“Nassau needs to help their public hospitals, New York City -- with a $4 billion surplus -- needs to help H+H, and SUNY will need to help Downstate and Upstate hospitals,” he said.

The cuts and Cuomo’s approach to dealing with them have ignited another episode in the feud between the governor and de Blasio and on Friday, the de Blasio administration announced its intention to sue New York State for D.S.H funds which administration officials say were expected by the city’s cash-strapped public hospital system for the federal fiscal year that ended on September 30.

City officials say they had budgeted with the expectation that $380 million would come through and Health + Hospitals Interim President and CEO Stan Brezenoff revealed that that the hospital system had begun to cut back on hiring to account for the deficit and was prepared to take other undesirable and risky measures.

“Our ability to deliver on our mission also relies on all levels of government. Unfortunately, the State is showing a shocking disregard for our mission and appears to have confirmed in public statements that they will not be releasing the $380 million Disproportionate Share Hospitals (DSH) funds that we need and deserve for serving more than one million Medicaid, uninsured and immigrant New Yorkers who relied on our care last fiscal year,” Brezenoff wrote in a letter to staff members last week.

As of Tuesday night, a spokesperson for the mayor’s office said the lawsuit would be filed “in state court,” but could say when it would be filed, or who would be named in the suit. De Blasio himself has said that the state’s withholding of past D.S.H payments designated for H+H, "is not normal and there is no excuse for it.”

Cuomo’s administration maintains that it is withholding its final payment to New York City’s public hospitals for the 2017 cycle in September because it is still unclear whether the federal government will renew the D.S.H. program.

“There’s no way to fund the public hospitals with a $1.1 billion cut unless it is rolled back,” the governor said during a press briefing last week. “In the meantime, we have made no D.S.H. payments to any public hospitals since October 1, which is when the law went into effect. You can’t distribute funding until you know how much you have to distribute.”

Cuomo officials say city hospitals should have anticipated the cut, noting that the program, which is associated with the Affordable Care Act, was always intended to be phased out as more New Yorkers became insured.

“The federal cuts to DSH have been pending for seven years and we are sure that all responsible CEOs of the state’s public hospitals have been accounting for these potential shortfalls in that time,” said Jason Helgerson, New York State Medicaid Director, in a statement. “The suggestion that the state is somehow in a position to reverse federal cuts is willful political ignorance and a distortion of reality -- only the federal government can possibly restore cuts they’ve enacted. Save for the federal government restoring these funds, there is no way the remaining DSH dollars can reimburse all hospitals at 100 percent.”

Cuomo’s office says that it has been in contact with city hospital officials and shared a letter Helgerson sent Brezenoff on September 29, referencing a meeting of healthcare providers to discuss the potentially imminent demise of D.S.H.

“While we implored Congress to act, as the October 1 deadline approaches, it is clear they are failing to do so,” the state Medicaid director wrote. “The Governor convened health care providers on September 19 to discuss the possibility of these cuts and held a press conference with the group outlining how harmful they will be.”

City officials claim that they have been singled out, and that all the state-run public hospitals have received their payments for the past fiscal year.

Regarding the potential lawsuit from New York City, Cuomo spokesperson Dani Lever called the threat “political theatre.”

“A more productive action would be to sue the federal government since they are making these devastating cuts, or if it actually cared about patient care, to use its funds to improve the hospital network that it owns,” said Lever.

One strategy -- requiring a legislative fix enacted through a special session -- would be to disperse the initial $380 million burden across hospitals throughout the state, most of which do not treat a large number of uninsured patients, state budget director Robert Mujica said in an interview with NY1 last week.

“The way the federal law interacts with the state law presently, is the first year of the cuts really impacts H+H first, under the law,” said Mujica. “So does that mean trying spreading the pain across all of the hospitals? That’s something we really have to look at. But always, redistributing is going to be very challenging. We hope it doesn’t come to that. We hope that the feds restore restore the cuts.”

U.S. Senate Democratic Leader Chuck Schumer of New York, who told State of Politics he’s been leading the charge to restore the hospital funding, described the battle in Congress as “neck-and-neck.”

The expiration of CHIP appears less dire; while the funding ended on September 30, states will not run out of the money for several months, and protecting children’s health is an issue that has bipartisan appeal. Schumer, who has been pushing to attach the renewal of CHIP funding to an Obamacare fix intended to stabilize markets and lower premiums, said he is working with his Republican colleagues to find a way to pay for the program.

About one-third of patients at the city’s public hospitals are uninsured and the network currently receives the largest D.S.H share. However, divvied up across state health care institutions, the $380 million burden would only account for less 1 percent of all hospital revenue, according to Bill Hammond, director of health policy at the Empire Center for Public Policy, a think tank.

"The lost money, if you look at just the federal losses, it’s about $330 million and that grows to $500 million in the second year, so it grows more and more every year. Spread across all the hospitals it would not be such a big deal, but right now it’s concentrated among 11 H+H hospitals, which is a problem,” Hammond said.

The ongoing federal health care crisis has also breathed new life into the debate over whether New York State would be well-served by a single-payer healthcare system, which Cuomo recently signalled tepid support for in an interview with WNYC radio’s Brian Lehrer.

A state-level universal health care bill, which guarantees health coverage to all New Yorkers regardless of ability to pay or immigration status, has repeatedly passed the Democratically-controlled Assembly, but has been defeated in the Republican-led state Senate by a sliver of a margin.

Assemblymember Dick Gottfried of Manhattan, who sponsors the bill, acknowledged that even if a version of his legislation was enacted tomorrow, it would take several years to fully implement, but said it warranted a second look given the uncertainty coming from Washington.

"It would not provide immediate relief, but the cuts that are likely to come from Washington will not come all at once, they will like snowball over the next couple of years," said Gottfried. “If we recognize health care as a right and provide health care coverage to every single New Yorker…Under a single-payer system, safety net hospitals and public hospitals would make out much better than they do today.”

Hospitals would save millions of dollars in administrative costs and the state would be in a much better position to bargain with drug companies, as it would represent 20 million patients, Gottfried added.

“Those savings are about the only way, realistically, that we can fill the gaps from whatever federal cuts are coming, without significantly damaging other programs or raising taxes,” he said. Critics, including Hammond, have said that Gottfried’s single-payer plan would be far costlier to the state that the Assembly member suggests.

When reached for comment on the health care cuts and whether the Assembly is prepared to return to Albany to deal with the situation, Mike Whyland, spokesperson for Assembly Speaker Carl Heastie, said, “We care deeply about these hospitals and are closely monitoring it.”

A spokesperson for Senate Majority Leader John Flanagan did not respond to a request for comment.

The denizens of Williamsburg and Bushwick have responded to news of potential multiyear L train closures with a mix of shock, despair, and irritation. People are talking through the alternatives: taking the G, J, and M trains; boarding the East River Ferry; or even (gasp!) riding the bus. Quite likely Williamsburgers will also summon a swarm of UberPools and Lyft Lines unlike any seen in our time.

Hysterics aside, it’s unlikely that the MTA would do a full, year-long double-tube shutdown. The most plausible plan is a long series of “nights and weekends” shutdowns for tube repairs, with the possibility of a brief total closure of both tubes to finish them “Fastrak”-style while rehabs of the 1st Avenue and Bedford stations and additional electrical substations are built. The latter service upgrades, which would permanently boost the line’s peak-hour capacity by 10 percent (a big deal for a subway line often at “crush” capacity during rush hour), depend on the timely success of Senator Chuck Schumer’s request to expedite federal funding. Nothing is certain until the upgrade funding comes through, but some Sandy-related stretch of nights-and-weekends closures is sure to come, as the MTA’s initial bid requests describe a contract lasting about 40 months.

If the MTA does indeed briefly close both tunnels—or even just one at a time—what should be done to limit the carnage? First, carpool restrictions (HOV-2, or even HOV-3) on the Williamsburg Bridge during train closures—just like during transit strikes and natural disasters. Previous nights-and-weekends closures of the L have brought “Carmageddon” to the bridge, especially during UberPool and Lyft Line promotions. Ensuring that solo drivers don’t hog every lane is a surefire way to keep everyone moving.

I personally remember the bridge congestion during the UberPool $2.75-a-ride L train closure special, as it was both the first time I shared an UberPool and the first time I rode with a carsick middle-aged woman being ill out the back window into the East River.

So to minimize the stop-and-go, nausea-inducing congestion—and maximize the potential efficiency of ridesharing services—the city should cooperate with the MTA in implementing HOV restrictions on the bridge, and even dedicating a lane to shuttle buses and the B39. It’s not at all radical to take away a car lane for more efficient transportation modes: The Williamsburg Bridge was built for streetcars.

This potential L train crisis is a reminder that better transit redundancy plans are needed for high-volume chokepoints, even if they inconvenience a comparatively small number of drivers. A truly radical long-term proposal would involve permanently replacing some car lanes with transit-only lanes and re-opening the abandoned streetcar terminal under Essex Street on the Manhattan side of the bridge. Current proposals include replacing the terminal with an odd subterranean mushroom park.

But if the real estate industry ever gets serious about funding a public-private waterfront streetcar through Williamsburg, perhaps restoring the rail lanes to the old streetcar terminal could be added to the plan. No matter what the MTA decides, the coming L train closures are an opportunity to start getting creative with our transportation systems and our waterfront. Let’s hope at least some of these mitigation proposals get a serious hearing.

]]>What To Do When The L Train ClosesMon, 01 Feb 2016 01:04:28 +0000Concerns of ‘Voter Fatigue’ as New York Schedules Four 2016 Election Dayshttp://www.gothamgazette.com/state/6081-concerns-of-voter-fatigue-as-new-york-schedules-four-2016-election-days
http://www.gothamgazette.com/state/6081-concerns-of-voter-fatigue-as-new-york-schedules-four-2016-election-days

Mayor de Blasio votes (photo via @BilldeBlasio)

As New Yorkers begin a year of many voting opportunities, there are important questions that elections will help answer - like who the next U.S. President will be and which party will control the state Senate - but also concern about voter fatigue and thus, turnout.

There will be at least four chances for New Yorkers to cast votes in 2016, with three different primary election days leading up to November’s general election. There will be a presidential primary vote in April; congressional primaries in June; and state legislative primaries in September. There will also be special elections sprinkled in to fill empty seats in the state Assembly and Senate.

On April 19, New Yorkers will vote in their party primaries for president; on June 28, it will be primaries for all 27 New York members of the House of Representatives, with Senator Chuck Schumer on the ballot, too; and on September 13, primaries for all 63 seats of the State Senate and all 150 seats of the State Assembly.

No date has been set by the governor yet for special elections in the state legislature, including those to replace former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos, whose 2015 corruption convictions created vacancies.

In 2015, some New York City voters cast ballots for new district attorneys, judges, and city Council members, among others. By the time New Yorkers vote for president in November, it could be their sixth trip to the polls in 14 months. Or, for residents of District 17 in the South Bronx, their seventh trip, as the resignation of City Council member Maria del Carmen Arroyo means a special election to fill her seat will occur February 23.

Frequent elections can result in voter fatigue, and diminish voter turnout. New York already has one of the lowest voter turnout rates in the country, with only 29 percent of eligible voters showing up to the polls to cast their votes in the 2014 general elections for state-level positions, including governor.

A recent New York Times editorial called the “extra burden” numerous election dates places on voters a sign of “dysfunction in Albany,” and urged lawmakers to “change the election schedule as soon as they return to Albany on January 6.”

Given how much it costs the state and municipalities to hold these elections, some have also argued that it would make financial sense to consolidate the number of days elections are held on. (This is at least part of the governor’s rationale for holding special elections on an already-scheduled election day (by law, the city must hold its special City Council election within a shorter time frame).)

“There is no reason the state primary can’t be held on the same day as the congressional primary,” the New York Times editorial board wrote, “thus eliminating the extra election and saving the state $50 million.”

“We do have a bill that we have passed almost every year in the Assembly to combine [the dates],” Assemblymember Michael Cusick said in response to calls from members of the New York State Board of Elections to consolidate the state and federal primaries during a Dec. 10, 2015, New York State Assembly hearing on enhancing the voter experience. “That is the goal of our committees, to get the primaries in one day, so we can save the state and municipalities money.”

Despite the benefits of merging election dates and support from the Assembly, combining the dates has not yet happened, perhaps because, as the New York Times editorial board suggests, “New York State lawmakers created this problem because it’s easier on the politicians, even though it’s costly and harder on the voters.”

The 2016 elections are for local, state, and federal posts, including district leaders, state Senators and Assembly members, members of Congress, and, of course, the president. Some races are special elections, such as those likely to be set for April 19, to fill four vacancies in the state Legislature, including the former seats of Silver and Skelos, who were both forced to leave office in December after being convicted on several counts of federal corruption.

Several special elections have already taken place in the past year to fill seats forfeited due to corruption convictions, spurring growing calls for ethics reform in Albany from good government groups and lawmakers alike.

In 2015, special elections were held to replace former State Assemblymember William Scarborough, who vacated his seat in May after he pleaded guilty to felony charges of wire fraud and theft; former Brooklyn State Senator John Sampson, who was convicted of obstruction of justice and lying to federal agents as part of a corruption investigation in July; and former Deputy Senate Majority Leader Thomas Libous, who was also convicted of lying to the FBI in July.

Governor Cuomo has said time and again he does not see any point in calling a special session to deal with ethics reform, though, as he has promised ethics reform will be at the top of his 2016 agenda. And while consolidating voting days may be a step unlikely to be taken by the state Legislature, some reforms aimed at improving New York’s low voter turnout are currently being considered by state lawmakers.

Reforms like early voting, better ballot design, and an upgraded, online voter registration system would help increase voting accessibility and thus, advocates argue, voter turnout. Other bills have been introduced in the state Senate that would allow same-day voter registration on election day, voting by mail, and holding the congressional and state primaries on a single day, City and State reports. The Voter Friendly Ballot Act, which would create a simpler, easier-to-read ballot, has passed in the Assembly.

According to a 2014 report from the U.S. Election Assistance Commission, New York ranks 46th in voter turnout. Six of the states that rank in the top ten for voter turnout all allow same-day registration. Nine of the states that rank highest in voter turnout allow early voting.

Reforms such as these, supporters say, would help to modernize election laws in New York, and could - if used in combination with methods to increase voter engagement - help to bring the state’s voter turnout on par with that of states that already have policies to make voting more accessible in place.

As of January 10, the 2016 New York election dates are:

April 19, 2016 — Presidential Primaries and special elections to fill four state Legislature vacanciesThe state Legislature has decided on April 19, 2016 as the date for both the Democratic and Republican presidential primaries.

Additionally, Governor Andrew Cuomo has said he will set a special election date to coincide with the presidential primary on April 19 to fill four vacancies in the state Legislature, including former Assembly Speaker Silver’s seat, and the Staten Island seat of former Assemblymember Joe Borelli, who won a City Council seat. That special election means that a local party organizations will select the candidates who will appear on their ballot lines. Cuomo has not officially declared these special elections for April.

June 28, 2016 — Congressional PrimariesNew York voters will decide on their party’s candidates for all Congressional races in the state on June 28, 2016, during the primaries for all 27 of New York’s members in the House of Representatives. Democratic Senator Chuck Schumer is also running for reelection on the same day - he is unlikely to face a primary challenge.

September 13, 2016 — State Legislature PrimariesThere will be primaries for all 63 members of the New York State Senate and all 150 members of the New York State Assembly on September 13, 2016. Elections will also be held on that day for district leaders in Queens, Brooklyn, and the Bronx.

November 8, 2016 — General ElectionOn November 8, 2016, voters across the country will vote for the next President of the United States. New Yorkers will also vote in a number of other critical races, including all State Senate and Senate Assembly seats, 27 races for the House of Representatives, and one US Senate race.

Voter turnout is typically higher for presidential elections than for any other race, and Democrats in New York are hoping increased turnout in a state that almost always votes blue in presidential races can help them to regain control of the State Senate.

After the 2016 elections conclude, the 2017 elections for New York City-level offices, including the mayor, are expected to heat up.

]]>Concerns of ‘Voter Fatigue’ as New York Schedules Four 2016 Election DaysMon, 11 Jan 2016 21:24:15 +0000The Week Ahead in New York Politics, January 4http://www.gothamgazette.com/state/6058-the-week-ahead-in-new-york-politics-jan-4
http://www.gothamgazette.com/state/6058-the-week-ahead-in-new-york-politics-jan-4

New York City Hall

Happy New Year!

So far, New York politics in 2016 looks a lot like 2015. On Sunday, Gov. Andrew Cuomo announced a new Executive Order related to homelessness that appears to be the opening salvo in his plan to take aim at the issue, most pressingly in New York City, where he's criticized Mayor Bill de Blasio's handling of the crisis that includes about 60,000 homeless people. Cuomo's order notes that homelessness is a problem around the state and says that when temperatures are below freezing, municipalities must provide shelter to homeless individuals, move homeless people to shelter, extend shelter hours, and maintain quality shelter conditions that meet state and local laws and regulations.

The move gets at the rivalry between the governor and the mayor, which shows little sign of abating, despite the fact that there are real policy issues - and lives - at stake. De Blasio has battled a persistent homeless census, issues with the conditions of homeless shelters, and a good deal of criticism from the governor and others, which has all led to a shake-up in his administration. To fight homelessness, de Blasio has enacted a good deal of new policy and drastically increased funding toward a variety of programs, but he has only just recently been able to level off a growing number of people without consistent housing.

On Sunday, the de Blasio administration was quick to point out that the governor's executive order does little, if anything, to change things in the city, which already has a must-shelter law and where the city recently announced new protocols for shelter hours and services. There is one main point of contention, though, which is the order's provision that homeless individuals must be moved to shelter - something the de Blasio administration says can only be mandated through state law.

De Blasio is sure to get questions about these issues when he holds a press conference centered around another topic Monday morning in Brooklyn - see below for details.

Cuomo, meanwhile, is gearing up for his January 13 State of the State and budget address, which is likely to include other policies aimed at homelessness. Cuomo is set to make an announcement on Monday in Manhattan - see below for details.

The state Legislature returns to Albany for its first session day of 2016 on Wednesday of this week. There are legislative hearings on the minimum wage and the failed Health Republic insurance exchange this week - see below for details.

Later this week, de Blasio is likely to hold a ceremony to sign his own recent Executive Order, the one mandating paid parental leave for about 20,000 nonunion city employees. De Blasio announced the policy in late December and promised to reopen collective bargaining with city unions in order to make the benefit part of their contracts. He's also looking to the state and federal governments to act on paid family leave so that all New Yorkers (and Americans) can take time off to care for a new child or a sick or elderly relative (de Blasio's initial policy is only for new parents, it does not cover care for sick or elderly relatives, but most paid family leave bill proposals do). [Read: De Blasio Moves on Paid Parental Leave]

As always, there's a great deal happening all over the city, with many events to be aware of - read our day-by-day rundown below.

***Do you have events or topics for us to include in an upcoming Week Ahead in New York Politics?E-mail Gotham Gazette editor Ben Max: bmax@gothamgazette.com***

The run of the week in detail:

MondayOn Monday at 7:15 a.m. outside Barclays Center in Brooklyn, "Mayor de Blasio, Senator Charles Schumer, elected officials and senior Administration leadership will meet morning commuters...to pass out flyers on the City's new commuter benefits law. Tomorrow is the first work day after the law went into effect on January 1." Read about the new transit benefit laws here: New Transit Program Called 'Win-Win' for Many Commuters and Employers.

At about 7:30 a.m. inside Barclays Center, "the Mayor will hold a press conference to discuss commuter benefits." Then, at 1:30 p.m. Monday at One Police Plaza, de Blasio and NYPD Commissioner Bratton "will hold a press conference to discuss historically low crime numbers in New York City."

At 11 a.m. Monday at 1199 SEIU headquarters in Manhattan, Gov. Cuomo will make an announcement, kicking off "The Mario Cuomo Campaign for Economic Justice." City officials, including Comptroller Scott Stringer, will attend.

TuesdayAt 6:30 p.m. Tuesday, City Council Members Dan Garodnick and Rosie Mendez will co-host a community town hall focused on "Homelessness on the East Side" at the Parish Hall of the Church of the Epiphany. A variety of other Manhattan elected officials are also co-sponsoring and will either attend or send representatives.

At 9:30 a.m., the Committee on Housing and Buildings will meet about a resolution calling on the city and state to sign a fourth New York-New York supportive housing plan.

At 10 a.m., the Committee on Finance will meet to discuss a budget extender and two items related to Business Improvement Districts

At noon, the Council will hold the year's first Stated Meeting. As always, this is expected to be prefaced by the Council Speaker's pre-stated press conference.

ThursdayAt 8:30 a.m., Senator Charles Schumer "will discuss Congress' year-end budget and how it impacts New York" at an Association for a Better New York breakfast event.

At the City Council at 10 a.m. Thursday, the Committee on Aging will meet for an oversight hearing about social adult day care.

At the state Legislature on Thursday: an 11 a.m. public hearing in Albany held by the Senate Standing Committee on Labor to analyze "the overall impact increasing the statewide minimum wage to $15/hour would have on workers, employers, and the state as a whole."

Friday and the weekendNothing on our radar right now, but that can easily change as events are announced once the week gets going. Stay tuned for updates here and elsewhere.

***Have events or topics for us to include in an upcoming Week Ahead in New York Politics? E-mail Gotham Gazette executive editor Ben Max any time: bmax@gothamgazette.com (please use "For Week Ahead" as email subject).

Council members introduce drone legislation (photo: William Alatriste)

Pointing to insufficient efforts on the part of the Federal Aviation Administration, New York City Council members are taking regulation of the city’s skies into their own hands.

In asserting their authority with respect to helicopters and drones on a turf traditionally maintained by the federal government, council members may find themselves in ambiguous legal territory. But they tell Gotham Gazette that they are acting in the interest of public safety and in part to push other levels of government to act.

Council Members Carlos Menchaca, Helen Rosenthal, and Margaret Chin introduced a legislative package of twobills last month that would prohibit the operation of sightseeing helicopters, citing concerns about noise pollution. The council members are supported by “Stop the Chop NYNJ,” a group of community members who complain the noise from sightseeing helicopters are diminishing quality of life.

“What we’ve tried to do is approach this issue from the perspective of the FAA, from the federal body that’s required to regulate this industry. And we’ve tried so hard to regulate this industry to some avail, but not totally dealing with the problems,” Rosenthal said a press conference in July. “What we’ve done at the City Council is identify a different way to deal with the problem, and that is through the issue of noise. And in fact what the city can do is to ban tourist helicopters...they are responsible for this incessant noise.”

The City Council does not have the authority to regulate airspace over the city in terms of flight patterns— that’s under the purview of the FAA. But the council does have some regulatory power, as Rosenthal referenced.

“If the federal government is regulating a field, then federal law generally will trump state law or local law and the question is, did the federal government intend to preempt the field— that is, is the federal government doing all regulations of of all helicopters, or did it allow some discretion to the City of New York?” Steven Mirmina, a professor at Georgetown Law and expert in aviation law, told Gotham Gazette. “It looks like [City Council members] did a balancing where they said the federal government regulates a lot of aspects for helicopters, but there is some discretion for the city to regulate also.”

Part of the regulatory power stems from the city’s capacity as a proprietor, according to aviation attorney Brian Alexander.

“The heliports themselves are owned by the city or the Economic Development Corporation, so…their control of the heliports is the principal way in which the city can control or even ban these types of flights,” Alexander said.

This power was affirmed in 1998 after Mayor Giuliani and the City Council approved regulations to reduce helicopter traffic at the 34th Street heliport by nearly 50 percent and to ban weekend flights. The Second Circuit Court largely upheld City Hall’s regulations in an appeal after the operator of the heliport, National Helicopter Corporation, successfully sued the city.

As proprietors of the heliports, the City Council has the power to impose “reasonable, nonarbitrary, and non-discriminatory” regulations on noise levels. In the 1998 case National Helicopter Corporation v. City of New York, the Court held that the city was acting lawfully in its role as a proprietor— and not as a “police power”- when imposing regulations. Had the city been acting as a police power, the legal grounds for regulating the heliports would have been much more tenuous.

“The regulation [banning weekend flights] is based on the City's desire to protect area residents from significant noise intrusion during the weekend when most people are trying to rest and relax at home,” and thus was permissible, Chief Judge Winter wrote in the decision.

Importantly, the bill introduced last month prohibits the operation of helicopters based on their “stages,” or noise levels designated by the FAA (There are three stages— the bill bans all of them). When the Council tried to regulate noise from helicopters in 1996 by putting restrictions on the size of helicopters that could fly in and out of the 34th street heliport (the rationale being that larger helicopters are noisier), the Second Circuit Court found that such regulation was discriminatory.

But Mirmina, the law professor, pointed out that the helicopter bill’s scope— targeting only sightseeing helicopters— could be problematic.

“If they’re concerned about the noise, they could say no helicopters over a certain decibel level. What about media helicopters? Those could be noisier than the tourist helicopters. You could have a sightseeing helicopter that’s really quiet. Why are we going to ban all sightseeing helicopters?” Mirmina asked. “So such a ban to me is, while on its face nondiscriminatory, it may also be viewed as not reasonably calculated to achieve their objective of keeping the skies more quiet.”

Another potential problem with the bill: because the city does not have the authority to control airspace, it can’t ban the tours outright.

“Anything that the city does regulating helicopters…will have no effect on how many helicopters will fly in the city’s airspace, that is 100 percent under the control of the FAA,” said Chapin Fay, vice president of Mercury, the public strategy firm representing tour industry group Helicopters Matter. “So for example, they could take off and land in New Jersey, they could go to Connecticut or Long Island but they still could fly the same routes they’re flying now.”

But sightseeing helicopter operators in New Jersey may soon find themselves shut out of the state as well: in March, three Garden State Assembly members introduced a bill that would prohibit tourist helicopter operations from taking off and landing on “all aviation facilities licensed by the state.”

The bills, now introduced to the City Council Committee on Environmental Protection and with eight sponsors in the 51-member body, may see a first hearing as soon as September. They are the latest in a long line of efforts to regulate helicopter traffic in New York.

In 2010, the Economic Development Corporation and helicopter operators agreed that helicopters would no longer fly over Central Park, the Empire State Building, or Brooklyn. The agreement also eliminated short tours between four and eight minutes. Those tours made up one-fifth of sightseeing traffic at the Downtown Manhattan Heliport, and were the most profitable for helicopter operators, the New York Times reported.

In 2008, Air Pegasus, the operator of the heliport at 30th Street, agreed to eliminate sightseeing tours after the Friends of the Hudson River Park sued the company, arguing that the location of the heliport on the land side of the park violated the law. This agreement— paired with the 1998 ruling of National Helicopter Corp. v. City of New York— left the downtown Manhattan heliport the only one open to sightseeing tours.

DronesWhile helicopter regulation has a fairly lengthy New York City history, drone regulation does not. The question of the extent of the city’s authority to regulate aircraft becomes perhaps more pressing— and more ambiguous— as unmanned aviation vehicles (UAVs), or drones, become more prevalent.

U.S. Senator Chuck Schumer (D-NY) famously described New York City as the “wild west” of drones. Underlining his point is the series of near-collisions drones have caused near John F. Kennedy and LaGuardia Airports and a close call with a NYPD helicopter over the George Washington Bridge, to name a few of the twelve or more incidents in the past year alone.

In considering regulation, elected officials have also cited privacy concerns, as drones with cameras attached to them become more affordable for the average citizen to purchase. But federal regulations lag behind the increase in popularity.

In 2012, Congress passed a reauthorization act related to the FAA that, among other requirements, compelled the agency to release finalized rules for UAVs by September 2015. A government audit last March, one month after the agency released proposed rules, concluded they would not make the deadline. Finalized rules are not expected for another year.

In the interim, state and local governments are under pressure to tread into the murky territory of drone law.

“Local governments right now are in a really tough position when it comes to drones. And in New York I think that's probably especially true, not just because of what happened at JFK last week. So every time there’s a negative drone incident, it puts additional pressure on local officials,” said attorney Stephen Hartzell, who specializes in UAS law.

Queens District Attorney Richard Brown released a statement Tuesday urging hobbyists to “use common sense when choosing to employ unmanned vehicles,” noting that his office “will utilize all legal tools available to insure the safety of those in the air and on the ground.” Queens, of course, is home to both of the city's major airports.

City Council members have introduced two bills looking to curb the use of drones. One, introduced by Council Member Dan Garodnick would ban drones from the city’s airspace with the exception of NYPD drones that had obtained a warrant. In an interview with Gotham Gazette, Garodnick acknowledged that his bill starts from the “strictest possible place.”

“Our bill is very strict, largely because there exist insufficient tools for enforcement. If you start allowing drones at certain heights or in certain areas or conditions, law enforcement needs to have the ability to both monitor and take action when people do not follow those rules,” Garodnick said in reference to what could become quite onerous enforcement. “Today, there is no credible way to do that.”

Garodnick said that he believes there is reasonable place and time for drone enthusiasts to operate their unmanned aerial systems, but doesn’t want to “open the floodgates” before tools to enforce regulations exist.

The second bill, introduced by Council Member Paul Vallone, would seek to impose a series of regulations on drone usage.

Vallone’s bill would prohibit using UAVs for surveillance purposes, at night or operating them within five miles of any airport and within a quarter mile of schools, houses of worship, hospitals and “open-air assemblies.” Importantly, it also would require users to operate their drones within their line of sight, a requirement also suggested by the FAA.

“The legal side of me is always looking to put in a bill that’s actually got a good chance of passing, an outright ban on something to me is a real hard way to go about a proper balance,” Vallone said. “This bill was put in with the intention of trying to find a balance of places that really need to be protected and giving people a place to fly these if they so choose to do so for their recreation.”

The two drone bills take different degrees of approaching the same issue. Both bills enjoy support from other council members: Garodnick’s bill has 14 sponsors, Vallone’s has 23 (as of August 7). Interestingly, there’s overlap within those numbers, with Council Members Costa Constantinides, Daniel Dromm, Julissa Ferreras, Rory Lancman, and Jumaane Williams listed as co-sponsors of both bills.

Vallone explains his bill would act as an interim measure until the FAA releases final rules for UAS operation.

“With the absence of federal, or FAA, guidelines, then we as the greatest city have to take steps to protect ourselves. Once we have our hearing - let’s be positive - the bill gets passed and becomes law, it still would be preempted or superseded by whatever FAA guidelines come out,” Vallone said. “But hopefully they would take note of the steps we took as a city.”

Garodnick struck a somewhat cooler stance when asked how he envisioned his bill would interact with the FAA’s forthcoming regulations.

“When the FAA puts together rules that protect the safety of New Yorkers, and when they fully occupy the field of law with their own rules, we will defer. Until that happens, we need to act to protect the privacy and safety of people here,” Garodnick said.

Whether local governments’ efforts may be preempted by FAA regulation is unclear and likely won’t be resolved for several years, according to Hartzell, the attorney.

“It’s very easy for people to say, ‘wait a second, isn’t this preempted? The FAA regulates the airspace, the federal government has sovereignty over our airspace so therefore how can any local or state authority possibly do anything?’” Hartzell said. “And the answer is, it depends on what they want to do and how they do it, and what I promise you is that we won’t fully know unless and until there is a law passed that winds up being challenged in court.”

To Hartzell, an interesting ambiguity in both Vallone’s and Garodnick’s bills is the clause that would allow someone to operate a UAV “pursuant to and within the limits of an express authorization by the Federal Aviation Administration.”

Express authorization, according to Hartzell, could be interpreted to include FAA Advisory Circular 91-57, which sets voluntary guidelines for flying model aircraft. Though the circular was signed into effect in 1981, its scope includes recreational drones (the FAA put in a request last year to formally cancel the advisory).

“There’s going to be someone that challenges a rule or law that flatly prohibits drone operation. This [language] is interesting because it seems to contemplate some sort of operation as long as somebody is expressly authorized by the FAA,” Hartzell said. “So the question is, what does that mean? It could mean that the FAA has to grant somebody specific permission or what somebody is likely to argue is [the advisory circular] could be interpreted as an express authorization written by the FAA itself.”

Garodnick told Gotham Gazette that he does not interpret AC 91-57 as giving “express authorization” because it’s an advisory memo, not an individual grant.

The FAA does grant companies and individuals such authorizations, giving them the permission to operate drones in a “continuing effort to safely expand and support commercial unmanned aircraft operations in U.S. airspace.” The FAA has passed over 1000 of these so-called “Section 333 exemptions.” Those who receive Section 333 exemptions would be allowed to operate drones over the city, Garodnick said.

“Councilman Vallone and I are after the same thing, which is a responsible set of rules that protects New Yorkers in a changing technological environment. We put those bills out to start this conversation,” Garodnick said (he and Vallone held a joint press conference to announce their bills). “We want to hear feedback from the public at a hearing and we hope that we will be able to craft cutting edge rules which protect New Yorkers and also open the door to some of the novel and exciting uses for drones once we have appropriate enforcement mechanisms.”